McNeill v. Durham & C.R. Co.
| Citation | 44 S.E. 34,132 N.C. 510 |
| Parties | McNEILL v. DURHAM & C. R. CO. |
| Decision Date | 28 April 1903 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Moore County; O. H. Allen, Judge.
Action by W. H. McNeill against the Durham & Charlotte Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Guthrie & Guthrie, Murchison & Johnson, and H. F. Seawell, for appellant.
U. L Spence, W. J. Adams, and Douglass & Simms, for appellee.
This is an action of tort, arising out of contract, for personal injuries alleged to have been received by the plaintiff April 6, 1900, by negligence of the defendant, while traveling on its road. The complaint avers that the plaintiff was a passenger on said railroad under a contract by it to carry the plaintiff for a valuable consideration. The defendant, in its answer, among other things, avers that the plaintiff was a "trespasser on its train, having tendered to defendant no ticket, money, or compensation whatever for its fare--only a free pass, which had expired 1st January previously by its own limitation," and which further had on its back a stipulation exempting the company from liability under all circumstances for injury to his person, or loss or damage to his baggage. The plaintiff testified that he was It is true, he said he told the conductor he would pay the fare but, upon his making the above statement, the conductor accepted him as a free passenger.
Upon this evidence the motion for judgment as of nonsuit should have been granted. There is no lawful contract of passage, and the only right the plaintiff could claim against the defendant is that the defendant should not willfully and wantonly injure him. Cook v. Railroad, 128 N.C. 333, 38 S.E. 925. The General Assembly (Laws 1891, p. 277, c. 320, § 4) provided that "if any common carrier subject to the provisions of this act shall directly or indirectly by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provisions of this act than it charges, demands or receives from any other person or persons for doing for him or them, a like and cotemporaneous service in the transportation of a like kind of traffic under substantial similar circumstances and conditions such common carrier shall be deemed guilty of unjust discrimination." Section 25 of said chapter (page 286) contains the exceptions which permit handling free and at reduced rates property of the United States, state or municipal governments, or for charitable purposes, or to or from fairs, and at exhibits thereat, and permits These exceptions are very liberal, but they do not embrace newspaper editors. Subject to the liberal exceptions just recited, the General Assembly deemed that free transportation or any other discrimination was so much against public policy that a violation of the statute was made punishable with a fine "not exceeding five thousand dollars" for each offense. Nothing could be more clearly a discrimination than the ground upon which the plaintiff asked for and received free passage on this occasion, to wit, that for the year previous he had advertised the schedule of the defendant company in his paper, and had received therefor a free pass over its line for the previous year, and this contract had been renewed for the year then current. It does not appear what was the value of the advertising done, charging for the space at the same rates as would be charged others; but, let it be what it may, it could not amount exactly--"neither more nor less"--to the value of a free pass to travel ad libitum an unstipulated number of miles over the defendant's road. Besides, it was an illegal discrimination to sell the plaintiff transportation on credit, and not payable in money.
This statute was before this court, and the clear meaning of the statute, and the duty of the court to enforce the public policy indicated by its unequivocal terms were stated in an exhaustive and able opinion by Mr. Justice Montgomery. State v. Railway Co., 122 N.C. 1052, 30 S.E. 133, 41 L R. A. 246. In the opinion of Mr. Justice Douglas in that case it was stated that the number of free passes issued in this state per year was understood to be over 100,000, and, after deducting the free passes issued in the cases allowed by the act, over $250,000 of transportation was given away each year, mostly to the classes best able to pay, and that this quarter of a million dollars was perforce added to the fares of those who paid their way. This was to show the public policy which required that such discriminations should be forbidden. Sections 4 and 25 of the act of 1891, above quoted, were copied from the act of Congress forbidding such discriminations, and the rulings of the Interstate Commerce Commission and of the ...
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